Request By:
C. O. Neel
Versailles, Kentucky 40383
Opinion
Opinion By: Steven L. Beshear, Attorney General; Patrick B. Kimberlin III, Assistant Attorney General
This is in response to your letter to our Office wherein you asked our opinion as to a retirement question on the crediting of unused sick leave accumulated during employment in state service pursuant to KRS 61.546(1). That statute, insofar as is here pertinent, reads as follows:
"Any member of the Kentucky Employees' Retirement System or the State Police Retirement System who is employed by the Commonwealth, shall, on retirement, receive credit for unused sick leave accrued in the state service in accordance with this section." (Emphasis ours.)
In your letter you indicate you were employed for a number of years as a teacher and in that capacity participated in the Kentucky Teachers' Retirement System (TRS). You also were employed in the Department of Education and continued your participation in the TRS. In 1973 you were employed in a position normally covered by the Kentucky Employees' Retirement System (KERS) in the Department of Agriculture, but chose to retain your TRS membership pursuant to KRS 61.680(4)(a).
In April, 1976, you retired under the TRS and at that time requested and received retirement benefits from the TRS. In July, 1976, you were employed by the Governor's Education and Arts Cabinet and in that position you began to participate for the first time in the KERS. Your participation in the KER also included a period of employment with the Vocational Advisory Council in July, 1980, through October 1, 1980.
The question you now present is whether you are entitled to be credited with unused sick leave by the KERS which you accumulated in state service not only while you were a member of the KERS but also as a member of the TRS in noncertified positions.
It is our opinion that the KERS is only responsible for crediting you with that unused sick leave which you accumulated while you were a member of the KERS. See OAG 80-373 (copy attached). KRS 61.546(1) reads as follows:
"Any member of the Kentucky Employes' Retirement System or State Police Retirement System who is employed by the Commonwealth shall, on retirement, receive credit for unused sick leave accrued in the state service in accordance with this section."
We believe that the above-cited provision should be interpreted to mean that only the unused sick leave which is accrued while the individual is employed by the KERS or the SPRS can be acquired. To interpret this statutory provision to mean that you could also receive credit in your KERS or SPRS for unused sick leave accrued while a member of the TRS is, we believe, contrary to the intent of the statute and the various reciprocal agreements among these retirement systems which make each system liable only for its proportional share of the benefits an individual has actually acquired in each of those systems. See OAG 74-904 (copy enclosed).
In fact, it is clear that when one reads KRS 61.546 in pari materia with KRS 61.680, the reciprocal agreement statute, they do not harmonize. And, in order for these two statutes to harmonize we believe that KRS 61.546(1) should be interpreted to mean, as previously indicated, that the KERS and the SPRS are responsible for crediting only that amount of sick leave which an individual has accrued while participating as a member of each of these particular systems. Such an interpretation results in harmony among these particular statutes. Smither v. Commonwealth, ex rel Luckett, Ky., 342 S.W.2d 521 (1961).
Moreover, if KRS 61.546(1) is given its literal meaning an absurd result will occur. First Industrial Plan v. Kentucky Board of Tax Appeals, Ky., 500 S.W.2d 70 (1973). For example, as is the case here, an individual who has belonged to the TRS and who has retired under the TRS with all the accompanying benefits of such retirement, may also force the KERS to provide him with additional service credit in the KERS for unused sick leave accrued while a member of the TRS. To permit such a "double advantage" is a clear and obvious departure from long established policy among the various retirement systems even when their reciprocal arrangements are taken into account. We do not believe that the Legislature should be presumed to have intended such a clearly absurd result. Valla v. Preston Street Road Water District No. 1 of Jefferson County, Ky., 395 S.W.2d 772 (1965).
Accordingly, we construe the language in KRS 61.546(1) as meaning that a member of KERS or SPRS may receive credit for unused sick leave "accrued in the state service" while a member of either the KERS or SPRS. Therefore, the KERS has correctly disallowed credit for unused sick leave accrued while you were a member of the TRS.